Reputation protection in family law disputes

11 June, 2018
by: Cripps

A family dispute by its nature is emotive but it can become particularly damaging if an opponent seeks to level personal attacks on you, to harm your reputation, for some perceived gain.  

This guidance note discusses reputational attacks in family disputes arising in the form of:

  1. Defamatory statements and/or
  2. Embarrassing disclosures

It may be one attack in isolation, or there may be a series of attacks, contributing to a course of conduct which can be said to amount to Harassment (which is a claim in itself). We consider those potential attacks below or you can download here.

In a connected, social media dependent society, a determined party can inflict considerable damage to a person’s reputation in a relatively short period of time, with little effort.

 

Recent court cases have highlighted how Facebook and other social media platforms are increasingly being used by ex (or soon to be ‘ex’) partners and spouses as weapons to attack their opposite party through the posting of defamatory statements.

A defamatory statement is a false statement of fact, which seeks to expose the other person to hatred, ridicule, or contempt, causing them serious harm.

In the context of a family law dispute this may be a statement that the person has committed a crime, often of a sensitive nature including domestic violence or offences towards children, has an infectious disease, or is fraudulent or incompetent in their profession.

‘Defamation’ is an umbrella term, covering both libel and slander.

Libel typically involves ‘lasting’ forms of publication (in writing), such as print or online statements – a Facebook comment, for example, – whereas Slander is more transient and includes spoken words or gestures.

 

Limited time to claim

We regularly advise clients on taking action to protect their reputation where a defamatory comment has been made. As such, we can offer fixed prices for each stage of the process, providing certainty and reassurance.

In family disputes, defamatory comments are often made with the sole purpose to cause harm, and they may continue to be made until there is a desired reaction or irreparable harm is done.

Ignoring the issue therefore is unlikely to be an effective strategy; if action is not taken at the outset, it may get worse.

Also, there is a relatively short period of time in which to issue a defamation claim at Court: one year from the date of publication of the offending statement.

Each new publication of the defamatory statement (in substantially the same form) is unlikely to reset the one year countdown.

Therefore, if you believe you have been defamed, we recommend seeking legal advice without delay.

Cripps can help by advising on the likely date by which a claim should be issued in court. Once the deadline to bring a claim is identified, an effective action plan can be devised, which may include some or all of the actions set out below.

 

Defamation: Initial Action

We can offer support and assistance when you suspect a defamatory comment has been made about you, in whatever format.

Injunction

Injunctions to restrain a party from publishing further defamatory comments before a trial are not usually granted in defamation cases. This is based upon public interest principles of freedom of speech.

However, if the defamatory comments are made as part of a course of conduct to harass a party, then an interim injunction to prevent Harassment may be possible.

Final injunctions after trial are sometimes provided in defamation claims where it is clear the opposing party may seek to repeat the same damaging comments in the future.

Cripps can help by:

  • advising on the potential to apply for an injunction in the circumstances of the case; and
  • making the injunction application, if appropriate.

 

Letter of Claim  

The Court rules in defamation provide that the first step in engaging with the other side is to send a Letter of Claim.

There is no ‘one size fits all’ and so a Letter of Claim must be carefully drafted to ensure that it includes relevant information and demands the appropriate remedies, which can include all or some of the following:

  • a takedown and retraction of the defamatory statement;
  • an undertaking not to repeat the same or similar comments;
  • a payment of compensatory damages; and
  • an apology.

It’s important to get the Letter of Claim right at the outset, presenting the case in the strongest way, to have maximum impact. 

Cripps can help by:

  • advising on the merits of the claim (and any other potential actions which may be possible in addition to a defamation claim, such as Harassment);
  • drafting the Letter before Action;
  • advising on any response received, including the implications of any ‘offer to make amends’ made by the defendant (under the provisions of the Defamation Act 1996); and
  • (as far as appropriate) advising on alternative dispute resolution methods including mediation.

Contact the social media platform

If the defamatory statement has been made via a social media platform a take-down request can be filed with the platform.

Social media platforms have terms of service which prohibit malicious and defamatory content from being posted. Reporting functions are available on the main social media platforms to request the take down of objectionable content.

A take-down request may be filed in addition to sending a Letter of Claim. However, before a take-down request is filed, it is recommended that evidence of the defamatory statements is secured (normally in the form of screenshots, for example).

Whilst it is not necessary to instruct a solicitor to file a request, legal advice may be useful to assist in its drafting.

Cripps can help by:

  • advising on the correct procedure and drafting the report/complaint to be filed; and
  • liaising with the social media platform on any response received and/or queries raised.

Contact the ISP

In certain circumstances, it may be possible to send a Take Down notice to the ISP (Internet Service Provider) hosting a website displaying defamatory content.

Unless procedures are followed and timescales are met, under the Defamation Act 2013 and the Defamation (Operators of Websites) Regulations 2013, an ISP may be held liable as a secondary publisher of defamatory material.

Cripps can help by:

  • advising on the ‘Notice and Take Down’ procedure (the law around this can be complex); and
  • drafting and sending an appropriate Take Down Notice.

Alternative dispute resolution (ADR)

Even in the most bitter of disputes, the courts encourage parties to seek settlement of their dispute through ADR.

ADR may be negotiating settlement through an exchange of ‘without prejudice’ correspondence, or it may be a mediation process.

In light of the costs of pursuing a defamation claim through the courts, ADR is potentially a very attractive and effective option.  ADR can be run alongside formal ‘open’ correspondence.

ADR should not be seen as a ‘second best’ resolution or outcome for a claimant, as it can offer distinct advantages over court proceedings. For example, an apology is not a remedy available at trial, however an apology can form part of a negotiated settlement in ADR.

Cripps can help by advising on the ADR options available, formulating a strategy to achieve an early settlement of the dispute.

 

Court Proceedings

If the above steps do not lead to resolution of the dispute, the next stage is to consider issuing a claim in court.

This is not a decision to be taken lightly however, because of the costs and risks of doing so.

Cripps can help by:

  • advising on the merits of the claim;
  • advising on likely legal costs and the risks if unsuccessful; and
  • advising on the remedies the court may award at trial.

Possible remedies include:

  • damages (the court will asses the gravity of the libel and numerous other factors when assessing the likely level and form of damages);
  • a permanent injunction;
  • an order removing the defamatory statement; and
  • an order requiring the judgment to be published somewhere public by the defendant.

In a claim for defamation, the party bringing the action does not need to establish any sort of intention to defame; all they need to do is establish that a statement is defamatory.  The focus will then shift to the defendant to establish a valid defence.  The most common defences are ‘truth’, ‘honest opinion’ and ‘qualified privilege’.

Cripps can help by:

  • advising on potential defences that may be relevant in the circumstances of the case; and
  • advising whether the presence of malice could affect the merits of the claim and any defence raised.

 

Reputational damage may also be inflicted through an authorised public disclosure of sensitive, private and confidential personal information (for example, private family photos or intimate secrets).

In the circumstances, it may give rise to claims of:

  • Breach of Privacy; and/or

 

  • Breach of Confidentiality.

The above claims can be considered in addition, or as an alternative, to a defamation claim.

 

Injunction

Whereas an injunction may not be possible in a defamation claim, it may be available where the claim involves an embarrassing disclosure.

 

Delay is a bar to obtaining an injunction, so we would recommend seeking legal advice without delay if you have concerns

 

If you wish to discuss the above in further detail, please contact us.

Where a person’s reputation is attacked, and damage is, or is likely to be, inflicted it is important to seek legal advice without delay.

Serious harm can be inflicted in a short period of time, and if an injunction is sought for example, time cannot be wasted.

Cripps’ Dispute Resolution and Family teams work closely together in these cases to ensure an effective, synchronised approach when family law proceedings are live or contemplated.

This guidance note is not intended as specific legal advice.  Each case is judged on its own merits, against its own particular set of facts and will typically involve an objective assessment by the court of the precise words used.

The law relating to defamation is complex and constantly developing.  The purpose of this note is to assist in providing an overall understanding of the legal context within which such claims operate.

If you require further guidance please contact Alex Davies on +44 (0)1892 506 326 or Will Charlesworth on +44 (0)1892 506 004.